92 Decision Citation: BVA 92-16588
Y92
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 91-17 803 ) DATE
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THE ISSUES
1. Entitlement to improved pension benefits for the purpose
of establishing entitlement to accrued benefits to include
the question of whether the overpayment of improved pension
in the amount $4,190 was properly created.
2. Entitlement to nonservice-connected burial benefits.
REPRESENTATION
Appellant represented by: Department of Veterans Affairs,
Virginia
ATTORNEY FOR THE BOARD
T. D. Harrigan, Counsel
INTRODUCTION
This case came before the Board of Veterans' Appeals (Board)
on appeal from a May 1990 decision of the Roanoke, Virginia,
Regional Office (RO). The veteran had active military
service from December 1943 to November 1945 and from June
1946 to February 1947 and died September [redacted], 1989. The
notice of disagreement was received in May 1990. The
statement of the case was issued in August 1990. The
substantive appeal was received in February 1991. The case
was received at the Board and docketed in April 1991. The
appellant requested a hearing before the Board and several
hearings were scheduled and postponed. In January 1992 the
appellant's representative indicated that she no longer
desired a personal hearing. The appellant is represented by
the Virginia Department of Veterans Affairs which presented
written argument to the Board in February 1992. The case is
now ready for appellate review.
CONTENTIONS OF APPELLANT ON APPEAL
The appellant contends that the RO should have reinstated
the veteran's entitlement to improved pension benefits based
on prima-facie evidence in the file which indicated that the
veteran received Social Security benefits and that that was
his only source of income. It is asserted that the only
reason the eligibility verification report was not returned
by the veteran was that he was incompetent, and that
otherwise he would have been in receipt of pension benefits
at the time of his death.
DECISION OF THE BOARD
For the reasons and bases hereinafter set forth, it is the
decision of the Board that the preponderance of the evidence
supports the appellant's claim for entitlement to improved
pension benefits for the purpose of establishing entitlement
to accrued benefits and a finding that the overpayment was
not properly created, and her claim for nonservice-connected
burial benefits.
FINDINGS OF FACT
1. The veteran had been in receipt of VA pension benefits
since 1971 and had had no additional income other than
Social Security benefits since 1975.
2. The veteran was found by a September 7, 1989 rating
action to be entitled to special monthly pension based on
the need for regular aid and attendance effective August 2,
1989.
3. The RO proposed in a September 7, 1989 rating action to
find the veteran incompetent in September 1989.
4. The veteran lacked the mental capacity to contract or
manage his own affairs without limitation.
5. The veteran died September [redacted], 1989.
6. The veteran reportedly received Social Security benefits
of $207.90 per month from October 1987 through September
1988 and $224.90 per month from October 1988 until his
death. Thus information was furnished by the appellant on
VA Form 21-0515-1 in September 1990.
7. The veteran's improved pension benefit payments were
terminated effective October 1, 1987 after he failed to
submit an income verification report that was due by
December 1, 1988, and at the time of his death in September
1989 there was a reopened claim for improved pension
benefits pending, and there was sufficient prima-facie
evidence of record to indicate that the veteran would have
been entitled to improved pension benefits prior to his
death.
8. The veteran was entitled to continuation of payment of
his improved pension benefits for the period beginning
October 1, 1987.
CONCLUSIONS OF LAW
1. The criteria for payment of improved pension benefits to
the veteran for the period from October 1987 until his death
are met, and the veteran was not overpaid benefits for the
period beginning October 1, 1987. 38 U.S.C. § 1521;
38 C.F.R. § 3.661(b)(2).
2. The criteria for payment of accrued benefits based upon
an award of improved pension benefits and special monthly
pension based on the need for regular aid and attendance are
met. 38 U.S.C. § 5121; 38 C.F.R. § 3.1000.
3. The criteria for payment of nonservice-connected VA
burial benefits are met. 38 U.S.C. § 2302.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
Subject to certain limitations, accrued benefits to which a
veteran was entitled at the time of his death are payable to
reimburse the person who bore the expenses of his last
sickness or burial if evidence had been submitted prior to
his death establishing such entitlement. 38 U.S.C. § 5121;
38 C.F.R. § 3.1000. Since the veteran had an application
pending for reinstatement of improved pension benefits at
the time of his death, his entitlement to payment of such
benefits must be reviewed to determine whether there were
accrued benefits payable at the time of his death.
The record shows that the veteran had been in receipt of
pension benefits since 1971. He was awarded Social Security
benefits in 1975 and from that time until his death he
received no income other than Social Security benefits and
VA benefits. In August 1989 action was taken to terminate
his award of VA improved pension benefits effective
October 1, 1987, since he had not submitted an eligibility
verification report, thereby creating an overpayment of
pension he had been paid from that date. This action was
taken shortly after receipt of a statement from the
veteran's daughter that, because of his mental condition,
the veteran refused to fill out an eligibility verification
report. She requested that consideration be given to
finding the veteran incompetent and appointing a custodian.
A medical report was received which showed that the veteran
needed supervision in keeping himself clean and that he
could not travel or leave home without accompaniment because
he became confused and disoriented. On the basis of that
report the RO found the veteran entitled to special monthly
pension based on the need for regular aid and attendance and
proposed to find him incompetent. However, the veteran died
before an incompetency determination was made. Following
the veteran's death the appellant submitted information
showing that from October 1987 until his death the veteran
continued to receive monthly Social Security benefits as his
only income.
We consider the fact that the veteran had a long history of
receiving Social Security benefits as his only form of
non-VA income to constitute prima-facie evidence of the fact
that that was the only income that he continued to receive.
The amount of such benefits could have been verified by the
RO obtaining information from the Social Security
Administration. Since there was prima-facie evidence of the
veteran's income of record the appellant may submit
verifying evidence following his death. 38 C.F.R.
§ 3.1000(d)(4). Accordingly, the veteran's entitlement to
receive improved pension benefits should be reinstated. He
was not overpaid improved pension benefits, and accrued
benefits should be paid in an amount to be calculated by the
RO.
Since we have concluded that the veteran had a reopened
claim pending at the time of his death and that there was
sufficient prima-facie evidence of record at the time of his
death to indicate entitlement to pension benefits,
entitlement to nonservice-connected death burial benefits is
also established. 38 U.S.C. § 2302.
ORDER
As the veteran was not overpaid improved pension benefits
for the period beginning October 1, 1987, the overpayment
was not properly created and entitlement to improved pension
benefits for the purpose of establishing entitlement to
accrued benefits is granted subject to the governing
regulations pertaining to the payment of monetary benefits.
Entitlement to nonservice-connected death burial benefits is
granted.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
G. H. SHUFELT E. M. KRENZER
38 U.S.C. § 7102(a)(2)(A) (1992) permits a Board of
Veterans' Appeals Section, upon direction of the Chairman of
the Board, to proceed with the transaction of business
without awaiting assignment of an additional Member to the
Section when the Section is composed of fewer than three
Members due to absence of a Member, vacancy on the Board or
inability of the Member assigned to the Section to serve on
the panel. The Chairman has directed that the Section
proceed with the transaction of business, including the
issuance of decisions, without awaiting the assignment of a
third Member.
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C. § 7266 (1992),
a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals
within 120 days from the date of mailing of notice of the
decision, provided that a Notice of Disagreement concerning
an issue which was before the Board was filed with the
agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687,
§ 402 (1988). The date which appears on the face of this
decision constitutes the date of mailing and the copy of
this decision which you have received is your notice of the
action taken on your appeal by the Board of Veterans'
Appeals.